Causation in International Protection from Armed Conflict

In 2011, Afghanistan became again the main country of origin of asylum seekers in industrialised countries, followed not far behind by Iraq and Serbia (and Kosovo). Industrialised countries also received record high numbers of asylum seekers originating from the Ivory Coast, Libya, Syria and Tunisia. Other significant countries of origin of asylum seekers in industrialised countries were Somalia, Eritrea, Nigeria and Mexico. It is no coincidence that all of these countries have experienced, and in some cases continue to experience, armed conflict. How we understand violence in a situation of armed conflict, and its effect on civilians, is therefore fundamental to decision makers and the courts in receiving countries. This chapter builds on the seminal work of James Hathaway and Michelle Foster on causation in the context of refugee protection under the 1951 Convention relating to the Status of Refugees (hereinafter the Refugee Convention). Whereas the focus of Hathaway and Foster’s work has been on refugee protection under the Refugee Convention, particularly the nexus between ‘being persecuted’ and the five grounds listed in Article 1(A)2, this chapter expands the scope of enquiry to other forms of international protection of pertinence to victims of armed conflict (such as subsidiary protection), with an empirical focus on the practice of the UK courts. Recent scholarship on Non-International Armed Conflicts (NIAC) suggests that much of the armed violence is private and not political in character; the political economy of such conflicts is primarily concerned with the personal acquisition of wealth and power, and is largely fuelled by micro-dynamics of inter-personal grievance and score-settling. Thus, a NIAC may exhibit quite a low level of lethal violence and limited degree of organization by armed actors, and yet civilians on the ground may perceive serious threats as a consequence of daily and routine experiences. This chapter advocates a broader approach to causation in asylum cases. In place of the social science approach that focuses on tracing 'efficient causation’ between observable variables, it advocates an approach that gives equal priority to ‘constitutive causation’, that is, to understanding how threats are ‘constituted’ within a social environment. This broader approach discourages the early definitional fixing of ‘conflict and threat’ – or ‘cause and effect’. Instead it opens up enquiry into the complex character of contemporary NIAC (or material conditions), and the experience and perceptions of asylum applicants fleeing armed conflict (or the social context). I conclude with some comments on the role of IHL in understanding causation.